Our continuing series of quick guides to major employment legislation puts
key information at your fingertips and brings you up to date with the latest
developments. This week Audrey Williams, employment law partner at Eversheds, Cardiff,
examines the effects that the government’s proposed amendments to the Disability
Discrimination Act may have for employers as workers with disabilities are found
to face higher-than-average unemployment rates compared with their able-bodies
counterparts
According to the most recent Labour Force Survey, the disadvantages facing
disabled people in gaining employment is marked. While 5 per cent of
able-bodied people are unemployed the figure doubles to 10 per cent in the case
of disabled candidates.
The distinction becomes even more marked with age, with 25 per cent of
disabled people aged 50 or more unemployed, compared with 12 per cent of
able-bodied people of the same age. The clear indication is that an individual
disabled person who has been disadvantaged or discriminated against, faces
discrimination in securing new employment.
There are several lessons for employers in this:
– Despite the introduction of the Disability Discrimination Act 1995 (DDA),
employers have some way to go in terms of equal treatment.
– An employer who does discriminate (by rejecting a candidate or dismissing
an existing employee because of a disability) does so at their peril. The
potential liability is likely to be higher in the case of a disabled candidate
or employee because of the difficulties they face in securing new employment
and mitigating their loss. Indeed it is likely that in claims where remedies
come to be considered, a disabled applicant could argue with some force that
their projected future loss will be considerable.
– With proposals to allow employment tribunals to order reinstatement
employers face a high likelihood of tribunals being sympathetic to such
requests from successful applicants.
All of which accentuates the importance of the recent proposals by the
Government task force to reform the DDA and the work focused on the goods and
services provisions which come into effect in 2004.
Amendments to the DDA
Earlier this year, in response to the recommendations to amend the DDA made
by the Disability Rights Task Force, the Government announced that it would
make several key changes:
– To protect individuals with cancer and asymptomatic HIV by extending the
definition of "disabled person" under the DDA. This would mean that
individuals with these conditions will gain protection once diagnosed, rather
than have to wait until their symptoms have a substantial impact on their
day-to-day activities.
– To remove an employer’s ability to justify a failure to make reasonable
adjustments. An employer will be left with having to demonstrate simply that
the adjustment itself was not reasonable to make.
– To include as two of the items listed as a reasonable adjustment, the
provision of training others on disability or use of equipment and to provide
support or access to external support. Note that there is no proposal to change
the justification defence for less favourable treatment on grounds of
disability.
– To remove the small employer exception so that all employers are obliged
to comply with the DDA, including those with fewer than 15 employees.
– To extend the scope of the legislation to prevent discrimination by other
bodies including partners and partnerships, the police, prison officers,
fire-fighters and council members. This is necessary for the UK to comply with
European Union disability discrimination protection.
– To allow discrimination claims by former employees who consider they have
been discriminated against or victimised to be brought within six months of the
termination or ending of their employment or beyond that date if tribunals
consider it "just and equitable" to extend that time limit.
Reinstatement orders
Of most interest and indeed help to disabled candidates is the Government’s
confirmation that tribunals will in future be able to order that an employer
reinstate or re-engage an individual where they have been found to have
discriminated.
This is an important new power and, given the potential difficulties facing
disabled candidates in securing employment elsewhere, one which tribunals may
well be more ready to invoke than has been the case with unfair dismissal
claims.
What it means is that employers face a bigger risk and penalty; both an
order to take an individual back into employment and to provide back pay to a
successful claimant. All the more reason for employers to demonstrate
reasonableness and justification in their decision-making if they are
successfully to defend claims brought under the DDA.
More rights
Another key area will be the provision of goods and services, where a code
of practice is likely to be introduced as a guide to best practice for
organisations and businesses. Indeed, specifically on this issue, the Disabled
Rights Commission is establishing a working party known as the Built
Environment Advisory Forum to look at the issue of access to buildings and
facilities. This body will have considerable input into the goods and services
code of practice and will advise the commission on future policy.
Time scales are indeed running short, given that the duty on service
providers to make premises accessible by making reasonable adjustments comes
fully into effect on 1 October 2004.
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